All Access Concrete Pumping Pty Ltd (Migration)

[2020] AATA 2463

All Access Concrete Pumping Pty Ltd (Migration) [2020] AATA 2463 (13 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  All Access Concrete Pumping Pty Ltd

CASE NUMBER:  1802296

DIBP REFERENCE(S):  BCC2017/3330761

MEMBER:Susan Reece Jones

DATE:13 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

Statement made on 13 March 2020 at 1:07pm

CATCHWORDS
MIGRATION – nomination –Temporary Residence Transition nomination stream – approved standard business sponsor – actively and lawfully operating a business in Australia – financial capacity of the business to employ the nominee for at least 2 years full time – no less favourable terms and conditions of employment – decision under review set aside

LEGISLATION
Migration Act 1958, ss 245, 359
Migration Regulations 1994, rr 1.13, 5.19

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 January 2018 to reject the applicant’s application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations).

2. The applicant, ALL ACCESS CONCRETE PUMPING PTY LTD, applied for approval on 13 September 2017. The requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains two alternative streams: a Temporary Residence Transition nomination (r.5.19(3)) stream and a Direct Entry nomination (r.5.19(4)) stream. If the application is made in accordance with r.5.19(2) and meets the requirements of either stream, then the application must be approved. If any of the requirements are not met then the application must be refused: r.5.19(5).

3. In this case, the applicant has applied for approval of a nomination, seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.

4. The delegate refused the application on the basis the applicant’s nomination did not satisfy r.5.19(d) of the Regulations because, on the delegate’s assessment of the information submitted, it was not demonstrated that the nominated person would be employed on a full time basis in the position for at least two years. Whilst the delegate acknowledged that the applicant did submit the some financial information, in the delegate’s view, the applicant did not provide sufficient additional material or evidence (such as a letter from their accountant) attesting to the financial position of the applicant’s business and its capacity to meet all employment obligations in regards to employing the nominee for a period of at least two years.

5. The Tribunal received a review application on 30 January 2018. It was signed on behalf of the applicant by a director, Mr Cameron Anderson, and was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Margaret Taaffe, as its representative and authorised recipient for correspondence.

6. On 6 August 2019, the Tribunal wrote to Mr Anderson via the agent, pursuant to s.359(2), to invite him to provide updated and current information demonstrating that the applicant met all of the criteria in r.5.19(3). The Tribunal provided examples of the kinds of information that would assist it to assess the criteria in r.5.19(3) and noted that all of the criteria had to be met in order for the Tribunal to set aside the refusal decision and substitute a decision to approve the nomination.

7. On 16 August 2019, the Representative requested an extension of time that the Tribunal granted until 2 September 2019.

8. On 29 August 2019, the Representative submitted only an ASIC current and historical extract, ABN look up print out and Job description for the nominee. She also stated that the applicant was unable to obtain the financial information to date, that it would be provided when made available and that the business owner and CFO were away on annual leave.

9. On 4 October 2019, the Tribunal invited the applicant to a hearing. The applicant’s sole director, Mr Cameron Anderson, attended the hearing by phone from Queensland and the applicant’s Chief Operating Officer Ms Pamela Roberts, also appeared in person before the Tribunal on 1 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Gerard Hollywood.

10. The applicant’s original application to the Department included:

    • ASIC extract and ABN Lookup – current details
    • Payroll activity summary from 01/06/2017 – 30/06/2017
    • Business Activity Statements (BAS) for selected months in 2016 and 2017
    • Payroll activity summary from 01/09/2016 – 30/09/2016
    • Employment Contract dated 13 June 2017
    • Document titled Training transactions
    • Organisation Chart
    • Profit and Loss for 2014, 2015, and 2016
    • Payroll from 01/11/2013 – 31/12/2013, 01/01/2014 – 31/10/2014
    • Financial summary Payroll 2016 / 2017 & payroll for last 3 sponsorship years
    • Payroll from 01/11/2014 – 31/10/2016

11. On 1 November 2019, the applicant’s agent provided the Tribunal with  the following additional material:

    • Financial Statements: 2018, 2019
    • Business Activity Statements (BAS): 2018, 2019
    • PAYG payment summaries for the nominee: 2017, 2018, 2019
    • Payslips for the nominee: 2015, 2016, 2017, 2018, 2019
    • Nominee reference letter from applicant customer Mitchcon Pty Ltd
    • Updated Employment Agreement September 2019
    • Job advertisements for Solid Plasterer
    • List of applicant’s employees / Organisation chart
    • CBA Bank Business Transaction Account for the applicant
    • CBUS Superannuation Contribution Summary for all applicant employees including the  nominee
    • CBA transactions statement showing selected payments for training contributions

12. For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the attachment to this decision. For the nomination to be approved, all the requirements must be met.

    The application must be compliant: r.5.19 (3) (a)

14. Regulation 5.19(3)(a) requires that the application for approval must be in the approved form, must be accompanied by the prescribed fee and, where applicable, must include the required written certification relating to conduct that contravenes s.245AR(1). The application must also identify a relevant person and occupation.

15. From the material on the Department file, the Tribunal is satisfied that the nomination application complied with the above requirements.

16. Given the above findings, the requirement in r.5.19 (3) (a) is met.

    Status of the nominator: r.5.19 (3) (b)

17. Regulation 5.19(3)(b) requires the nominator to be or have been the relevant standard business sponsor who is actively and lawfully operating a business in Australia. In addition, the nominator, as that standard business sponsor, must not have met certain criteria relating to the operation of a business overseas, in the most recent sponsorship approval.

18. The Department’s records indicate that All Access Concrete Pumping Pty Ltd was approved as a standard business sponsor between 6 November 2013 to 6 November 2016.

19. The Tribunal is satisfied that the company was the standard business sponsor who last identified the nominee, Mr Gerard Hollywood, and nominated him for a subclass 457 visa. The Tribunal is further satisfied that the company did not meet certain criteria relating to the operation of a business overseas in its most recent sponsorship approval.

20. The applicant’s sole director, Mr Anderson, told the Tribunal that the business operates as a sub-contractor to a larger concrete pumping company, Mitchcon, at two sites in Melbourne    (Laverton North and Braeside). The applicant owns and operates three large concrete pumping machines and operates a large part of its business as a sub-contractor to Mitchon on a permanent basis.

21. The applicant’s accountant, A.Georgiou & Associates, confirmed the applicant has been actively operating since April 2010 and that in the opinion of Andrew Georgiou, the applicant has the ability to meet its financial responsibilities. The Tribunal notes that its performance over the last 4 complete financial years is as follows:

$	2016	2017	2018	2019
Total income	617,690	974,705	1,066,825	867,851
Profit / Loss	(112,182)	16,600	62,442	48,969

1. The applicant’s sole director, Mr Anderson, told the Tribunal at hearing that the business invested heavily in equipment / machinery in the first 5 years of operation, hence the business losses, but noted that the business is now profitable and continuing to grow.        The applicant confirmed that all employee entitlements (salary and superannuation) have been, and continue to be, paid.

2. In relation to whether the applicant is actively and lawfully operating a business in Australia, the Tribunal is satisfied from the financial documents provided and the evidence of its current ABN and ASIC registrations and its CBA Business Transactions Bank Account from October 2013 to October 2019, that the applicant is actively and lawfully operating a business in Australia.

3. Given the above, the Tribunal finds that the requirement in r.5.19(3)(b) is met.

   Previous employment of the nominee: r.5.19(3)(c)

4. Broadly speaking, to meet the requirement in r.5.19(3)(c), either:

   ·the nominee must have been employed full time in Australia in the position for which he or she holds a Subclass 457 visa for at least 2 of the 3 years preceding the nomination application; or

   ·the nominee holds a Subclass 457 visa on the basis that s/he was identified in a nomination of a specified occupation for that visa, the nominator nominated the occupation, and the nominee has been employed in that occupation for at least 2 years in the 3 years immediately before the application.

5. The Tribunal has reviewed the occupations specified in IMMI 13/067 for the purposes of the second dot point above, and is satisfied that the nominated occupation of Program or Project Administrator is not included in it. Accordingly, the applicant must meet the requirements of the first dot point above.

6. The Tribunal is satisfied on the evidence before it that:

   ·     the application for an Employer nomination was made on 13 September 2017 for the position of Solid Plasterer;

   ·     the relevant 3 year period is therefore 12 September 2014 to  12 September 2017;

   ·     the nominee was initially employed by the applicant on 12 September 2012 while the holder of a subclass 417 visa;

   ·     the nominee applied for a subclass 457 visa on 19 June 2013 on the basis of his nomination by the applicant as Solid Plasterer and was granted  a subclass 457 on 26 November 2013;

   ·     the  nominee’s subclass 457 visa was valid until 26 November 2017; and

   ·     he had therefore worked for the applicant in the nominated position for approximately 5 years prior to the nomination, and for 3 years as a subclass 457 visa holder in the 3 year period immediately prior to the nomination application being lodged.

7. Accordingly, given the above, and the evidence provided including the nominee’s Employment Agreements (June 2017 and September 2019), the applicant’s tax returns and her PAYG summary statements for the nominee, the Tribunal is satisfied that the requirement in r.5.19(3)(c) is met.

   Future employment of the visa holder: r.5.19(3)(d)

8. Regulation 5.19(3)(d) only applies to certain nominees (those described in r.5.19(3)(c)(i)). For this class of person, the regulations require that the nominee will be employed on a full time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

9. Mr Anderson, sole director of the applicant, told the Tribunal that the nominee is the organisation’s longest serving employee, having worked for the applicant since late 2012.  He also informed the Tribunal that the nominee delivers high quality work, is loyal and a reliable, valued employee. The applicant’s organisation chart shows that the nominee is one of six full time employees and the only non-Australian.

10. The applicant submitted a letter from Mr Jake Mitchell, Director of Mitchcon Pty Ltd, the organisation to whom the applicant sub-contracts. It states that the nominee is a valued for his work ethic and professionalism and is “one of the busiest and most successful solid plasterers …”, in the Mitchcon operation. The Tribunal notes that Mitchcon is a large, high profile pumping services provider, which has its own Fair Work Commission Enterprise Agreement.

11. The applicant’s Visa Grant Notice dated 19 June 2013 specifies that the nominee is to be paid $56,316 per year. The applicant submitted an Employment Agreement dated 13 June 2017, which provided that nominee, will be engaged for a term of at least 3 years, will be paid a salary of $65,000 (plus superannuation), noting that the nominee may be required to work additional hours.  PAYG statements of the nominee show the nominee has been paid in excess of the  contracted $65,000 p.a. The nominee’s payslips from 2015 show that his annual base salary was stated to be $68,172 but he was paid overtime regularly. The  nominee’s PAYG statements show as follows:

PAYG Salary $	2016 $	2017$	2018$
Contracted $65,000	91,180	95,551	84,443

1. The applicant provided a recent updated Employment Agreement dated 3 September 2019, which continues to be current in its essential terms, states the period of employment is for minimum of 2 years from the grant of visa,  that the terms and conditions of employment do not preclude the extension of employment, and that the salary will be $75,000.

2. Based on the documentary evidence provided on behalf of the applicant, including the nominee’s contracts of employment stated above, his PAYG summary statements, and the applicant’s financial information, the Tribunal is satisfied that the nominee will continue to be employed on a full-time basis for at least 2 years, and that the terms and conditions of his employment do not expressly exclude the possibility of extending his period of employment.

3. Given the above findings, the Tribunal is satisfied that the requirement in r.5.19(3)(d) is met.

   No less favourable terms and conditions of employment: r.5.19(3)(e)

4. Regulation 5.19(3)(e) requires that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that are, or would be, provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

5. The Tribunal accepts from the evidence of the organisational chart provided to the Tribunal on 1 November 2019 that there is no Australian citizen or permanent resident performing equivalent work in the same workplace at the same location as the nominee. 

6. The Tribunal therefore needs to be satisfied that the terms and conditions of employment applicable to the nominated position will be no less favourable than those that would be provided to an Australian citizen or permanent resident performing equivalent work in the same workplace at the same location.

7. As noted above, the nominee’s contract of employment for the nominated position was originally dated 13 June 2017 and provided that the nominee’s salary is $65,000 per year plus superannuation.  At hearing, the nominee confirmed that this contract is ongoing. It is noted that the nominee’s salary is now contracted to be $75,000 (plus super) but that he is consistently earning in excess of that amount as evidenced by his PAYG summary statements.

8. The Tribunal has consulted a range of sources of information, including:

   • the Payscale website (accessed 21 February 2020) indicates that a Solid Plasterer in Australia earns between $41,212 and $91,932: (refer  
   •  the Government’s Job Outlook website (accessed 21 February 2020) which indicates that the average weekly earnings before tax for Plasterers Contract, is $1,600 per week before tax (or $83,200 before tax annually): and
   • advertisements for various  Solid Plasterer positions in all of Melbourne listed on Seek.com.au as at 21 February 2019 where a salary range is given:
   • $80,000 to $84,999 (advertised 12 February 2020); and
   • $54,000 (advertised 17 February 2019);

9. The Tribunal finds that the nominee’s salary is within the Payscale, Job Outlook and Seek ranges. The Tribunal does note that the nominee PAYG statements show that he has earned in excess of the contracted amount.

10. In this case, the Tribunal is satisfied that the applicant company is relatively small and operating in a niche area.  Under these circumstances, and on balance, the Tribunal accepts that the nominee’s salary would be no less favourable than that which would be offered to an Australian employee for undertaking the same work in the same location.

11. The Tribunal is further satisfied that the original contract of employment and most recent one dated 3 September 2019 for the nominee has standard provisions relating to leave and termination that are consistent with those in the Fair Work Act 2009 (Commonwealth) and National Employment Standards (NES). 

12. Accordingly, the requirement in r.5.19(3)(e) is met.

    Training commitments and obligations: r.5.19(3)(f)

13. Regulation 5.19(3)(f) requires the applicant to have fulfilled any commitments made relating to meeting training requirements, and complied with applicable obligations relating to training  requirements, during the period of the  applicant’s most recent sponsorship approval.  These requirements may be disregarded if it is reasonable to do so.

14. The Tribunal notes that the applicant’s approval as a standard business sponsor ran between 6 November 2013 and 6 November 2016. Specifically, the training requirements applicable for an established business with approval as a standard business sponsor in that period are set out in written instrument IMMI 13/030 as follows:

    • A) recent expenditure by the business to the equivalent of at least 2% of payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business; or
    • B) recent expenditure by the business to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

15. IMMI 13/030 provides that expenditure that can count towards Training Benchmark B includes:

    • paying for a formal course of study for the business’s employees who are Australian citizens and Australian permanent residents or for TAFE or University students, as part of the organisational training strategy
    • funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for the business’s employees who are Australian citizens and Australian permanent residents or, for TAFE or University students, as part of the organisational training strategy
    • employment of apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
    • employment of a person who trains the business’s Australian employees who are Australian citizens and Australian permanent residents as a key part of their job
    • evidence of payment of external providers to deliver training for Australian

    employees

    • on-the-job training that is structured with a timeframe and clearly identified

    increase in the skills at each stage, and demonstrating:

    • the learning outcomes of the employee at each stage;
    • how the progress of the employee will be monitored and assessed;
    • how the program will provide additional and enhanced skills;
    • the use of qualified trainers to develop the program and set

    assessments; and

    • the number of people participating and their skill/occupation

1. However, it does not include expenditure on training that is:

   • delivered on-the-job, other than on the job training which meets the requirements outlined above under the heading ‘expenditure that can count towards this benchmark’
   • confined to only one or a few aspects of the business’s broader operations, unless the training is in the primary business activity
   • only undertaken by persons who are not Australian citizens or permanent residents
   • only undertaken by persons who are principals in the business or their family members
   • only relating to a very low skill level having regard to the characteristic and size of the business.

2. At hearing, the applicant was asked to submit to the Tribunal a full accounting and proof of all Training Benchmark payments to show that it had met its legal obligations. The Representative responded to the Tribunal on 1 November 2019 and notably the response contained no full accounting as was requested - in fact, it contained no accounting at all.  Instead, the Representative stated that at the time of the nomination application (13 September 2017), the nominator provided evidence that all training requirements had been met up until the time of the SBS expiry (6 November 2016), and hence, no further obligations to make training contributions was required.

3. According to the documents provided by the applicant and the accounting that the Tribunal has had to undertake, the submission by the Representative that the applicant had met all training requirements up until the time of the SBS expiry (6 November 2016), is incorrect. The applicant was not in compliance with the Training Benchmark provisions as obligated on 6 November 2016, being the SBS completion date. The legislative obligation is that payment of Training Benchmarks must be made during the period of the applicant’s most recent sponsorship approval, and not up to eighteen months later.

4. The Tribunal’s assessment of the financial years, 2014, 2015, 2016 shows that the applicant was not in fact compliant with the Training Benchmark provisions until the 2018 financial year, as set out in the following table:

Financial Year	2014	2015	2016	2017	2018	Total
Total payroll $	269,794	336,184	400,768	415,601	549,469
1% $	2,698	3,361	4,007	4,156	5,494
SBS 6 November 2013 – 2016 (Payroll estimate adjusted Nov – Nov) $	1799	3361	4007	1336	$10,503
Training payments $ (Evidence: CBA Bank Statements    or invoice receipts/ acknowledgment).	2 November 2014 SnT Training $5,180	30 June 2016 WAM Training $693	28 July 2016 Centre for Excellence $225 28 July 2016 Pegasus Employee compliance $110 29 September 2016 SnT Training $1600	13 July 2017 SnT Safety Training & Consulting $5,213 4 December 2018 Mitchcon Civil works Training including OHS $5,380	$18,401

1. The requirements to fulfil any commitments made relating to meeting training requirements may be disregarded by the Tribunal if it is reasonable to do so. The Tribunal notes from the evidence provided that the applicant has continued to invest in training its Australian staff. Therefore, the Tribunal has adopted an inclusive approach to the issue of compliance of payment within prescribed SBS dates and considered the all payments made by the applicant towards training including those made outside the SBS approval dates. As the evidence provided includes proof of payment for Training Benchmarks identified in the applicant’s CBA Business Bank Transactions account, the Tribunal has had regard to the whole of the evidence before it as set out above. Having reviewed the documented expenditure on training against the Tribunal’s calculated Training Benchmark B 1% figure for each financial year between 2014 and 2018 as set out in the  table above, the Tribunal is satisfied that the applicant’s acceptable training expenditure exceeds the 1% requirement in Training Benchmark B.

2. Accordingly, it finds that the requirement in r.5.19(3)(f) is met.

   No adverse information known to Immigration: r.5.19(3)(g)

3. Regulation 5.19(3)(g) requires that there is no adverse information known to Immigration about the nominator or person associated with the nominator; or it is reasonable to disregard any such information. For these purposes, ‘adverse information’ and ‘associated with’ have the meaning given in rr.1.13A and 1.13B. 

4. The Tribunal has reviewed the Department’s records, including its Integrated Client Services Environment (ICSE) and has found nothing to indicate that there is any adverse information known to Immigration about the nominator or person associated with the nominator.

5. Accordingly, the requirement in r.5.19(3)(g) is met.

   Satisfactory compliance with workplace relations laws: r.5.19(3)(h)

6. Regulation 5.19(3)(h) requires the applicant to have a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.

7. There is nothing in the Department’s records or otherwise to indicate that the applicant does not have a satisfactory record of compliance with the laws of the Commonwealth or of Victoria relating to workplace relations.

8. Accordingly, the Tribunal finds that the requirements of r.5.19(3)(h) are met.

   Genuine need to employ nominee: r.5.19(3)(i)

9. Regulation 5.19(3)(i) requires that there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.

10. At hearing, the sole director of the applicant, Mr Anderson, explained to the Tribunal that the applicant is a niche business, which is engaged to pour, spray and finish concrete. The work undertaken requires skilled employees who are hard to find and retain. The applicant business requires significant investment in high cost equipment. The applicant is a key sub-contractor to Mitchcon Pty Ltd, a large concrete pouring business headquartered in Melbourne. The relationship with Mitchcon is a long-standing one, and the nominee is recognised by both the applicant and Mitchcon for his work ethic and professionalism. Mr Anderson also told the Tribunal that the nominee is a trusted, long serving employee and that such employees are hard to find – others may have similar skills but often prove to be unreliable and short-term employees.  

11. The Tribunal is satisfied from the documents provided that there is a genuine need for the nominator to employ the nominated person, as a paid employee, to work in the position under the nominator’s direct control. In making this finding, the Tribunal notes that the applicant has been employing the nominee since late 2013 and it accepts that there is a need to continue to employ someone in this role, particularly given the significance of the applicant’s key contracting relationship with Mitchcon.  

12. Accordingly, the requirement in r.5.19(3)(i) is met.

13. Based on the findings above, the Tribunal is satisfied that the applicant meets the requirements of r.5.19 for approval of the nomination of the position in Australia.

    DECISION

14. The Tribunal sets aside the decision under review and substitutes a decision approving the nomination.

    S. Jones
    Member

    
    

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (iv)    identifies a need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control; and

    (b)the nominator:

    (i)       is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations; and

    (i)there is a genuine need for the nominator to employ the person, as a paid employee, to work in the position under the nominator’s direct control.